Risch, Michael --- "Trade Secret Law and Information Development Incentives" [2011] ELECD 548; in Dreyfuss, C. Rochelle; Strandburg, J. Katherine (eds), "The Law and Theory of Trade Secrecy" (Edward Elgar Publishing, 2011)

Book Title: The Law and Theory of Trade Secrecy

Editor(s): Dreyfuss, C. Rochelle; Strandburg, J. Katherine

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847208996

Section: Chapter 7

Section Title: Trade Secret Law and Information Development Incentives

Author(s): Risch, Michael

Number of pages: 31

Extract:

7 Trade secret law and information
development incentives
Michael Risch*1


I. INTRODUCTION

Trade secrets differ from other forms of intellectual property in many
subtle ways that affect incentives to invest in information development.
These differences relate not only to the types of information protected, but
also to the requirements one must meet to protect each type of informa-
tion. The various divergences from and intersections between trade secret
law and other intellectual property laws result in `differential incentives',
leading to differences in the amount and types of investments companies
make in developing information. This chapter explores five types of dif-
ferential incentives associated with trade secret law:

(a) trade secret law versus no trade secret law;
(b) trade secret law versus patent law;
(c) trade secret law versus copyright law;
(d) trade secret law versus trademark law;
(e) trade secret law versus right to privacy.

As discussed in more detail throughout the chapter, these comparisons
flow directly from differences in the underlying theories for providing pro-
tection to different types of information.
The theoretical framework for incentives provided by non-secret intel-
lectual property protection is fairly well established. Copyright law and
patent law are based in part on the theory that creativity and innovation,
respectively, are incentivized by rewarding creators with limited govern-
mental protection that facilitates recovery of investments in creation.
Furthermore, the policies of copyright and patent law favor building on


* Associate Professor of Law, Villanova University School of Law. The
author thanks Alan Hyde, Mark ...